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Feds, courts may step in if supes shield youths

Bob Egelko, Chronicle Staff Writer

Tuesday, November 10, 2009


San Francisco supervisors' effort to shield immigrant youths from deportation when they're arrested on felony charges comes to a head today when the board votes on an override of Mayor Gavin Newsom's veto - a vote Newsom says he'll disregard because the ordinance would violate federal law.

Supervisor David Campos' legislation has enough votes to pass. At that point, San Francisco will be at the center of a simmering nationwide legal debate over state and local government authority to depart from federal immigration policy, said Jayashri Srikantiah, a Stanford law professor and director of the school's Immigrants' Rights Clinic.

At one end of the spectrum, she said, are officers like Sheriff Joe Arpaio in Maricopa County, Ariz., who round up suspected illegal immigrants. At the other end are cities like San Francisco and Los Angeles, which claim authority for protective policies.

The San Francisco dispute centers on a 1996 federal law that says state and local governments cannot prevent their employees from contacting U.S. authorities about a person's immigration status. That's just what Campos' ordinance appears to do by allowing the city to report juveniles to immigration officials only after they have been convicted of felonies.
Newsom-Herrera view

Newsom says Campos' measure is unenforceable, and City Attorney Dennis Herrera says there's a strong chance that a court would strike it down. But some law professors disagree, noting that the federal law doesn't actually require cities to turn in suspected illegal immigrants. The law, they say, wasn't intended to limit a local sanctuary policy like San Francisco's.

San Francisco's 1989 sanctuary ordinance bars police from arresting, stopping or questioning people based solely on their national origin or immigration status. The ordinance also forbids the use of city money to help enforce federal immigration law, except as required by U.S. or state law.

As recently as early 2008, city staff interpreted the policy as a prohibition on all reporting of minors to immigration officials, even after a conviction. But after The Chronicle reported that San Francisco was protecting youthful drug dealers from deportation, Newsom ordered juvenile court officers in July 2008 to turn suspected illegal immigrants over to federal authorities after they were arrested on felony charges.
Possible conflicts

Campos' ordinance, if passed, "imposes a new restriction on the authority of city employees to communicate with federal authorities about a juvenile's immigration status," Herrera's office said in an Aug. 18 memo to the mayor.

Although the issue is still unsettled, the memo said, there is a "serious risk" that a court would overturn the Campos ordinance, and perhaps the 1989 sanctuary law as well.

The city attorney said Campos' measure also could hamper efforts to settle a private lawsuit accusing San Francisco of violating a state law on reporting drug suspects to immigration officials. It might also expose city officials to criminal charges in a federal grand jury investigation into whether they knowingly transported or harbored illegal immigrants, the memo said.

To reduce the risk of a federal conflict, Herrera recommended that the city refrain from punishing employees who disregard Campos' ordinance.
Defending measure

On the other side of the debate, UC Davis law school Dean Kevin Johnson said he thought Campos' measure was consistent with federal law, which "has not imposed any reporting requirements on cities."

Johnson said the federal law was designed to let the federal government demand information from state and local authorities about specific individuals' immigration status, and not to require a city to report the information on its own.

"State and local governments don't necessarily know what someone's immigration status is," and by requiring such reports, "you open the door to racial profiling," Johnson said. The federal government has never challenged policies in Los Angeles, New York or San Francisco that limit disclosure of immigration information, he said.

Srikantiah, the Stanford professor, said the city would have a strong case for refusing to volunteer information on the immigration status of juveniles, whose records are confidential.

"The city routinely keeps juvenile information confidential," Srikantiah said. "Requiring the city to turn over those records to the federal government would run afoul of those confidentiality protections."

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